Com. v. Bronson, S.

J-S18026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHEILA M. BRONSON :
:
Appellant : No. 521 MDA 2018
Appeal from the Judgment of Sentence January 30, 2018
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000464-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHEILA M. BRONSON :
:
Appellant : No. 1163 MDA 2018
Appeal from the Judgment of Sentence Entered January 30, 2018
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000464-2016
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED: MAY 24, 2019
Appellant Sheila M. Bronson appeals from the judgment of sentence
imposed following her jury trial convictions for theft by unlawful taking and
tampering with records.1 Appellant alleges that the Commonwealth presented
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 3921(a), 4104(a).
J-S18026-19
insufficient evidence to establish that she committed the offenses, and the
trial court erred by precluding certain evidence. We affirm.
We adopt the trial court’s facts and procedural history. See Trial Ct.
Op., 8/1/18, at 3-13. On January 30, 2018, the trial court sentenced Appellant
to thirty-six to seventy-two months’ imprisonment, plus three years’
probation, for theft by unlawful taking. The court imposed a consecutive term
of seventeen to thirty-six months’ imprisonment, plus two years’ probation,
for tampering with records.
On February 8, 2018, Appellant timely filed a petition for reconsideration
of sentence. That same day, Appellant also filed post-trial motions seeking
an acquittal or new trial. On February 27, 2018, the trial court entered an
order denying Appellant’s petition for reconsideration of sentence. The order
noted that the court would conduct a hearing before deciding Appellant’s
remaining post-trial motions. Nevertheless, the order advised Appellant of his
right to file a notice of appeal within thirty days.
The trial court conducted its hearing on Appellant’s post-sentence
motions on March 13, 2018. At the hearing, Appellant requested to submit a
brief in lieu of oral argument. The court granted Appellant’s request and
established a briefing schedule. Before either party submitted a brief,
however, Appellant filed a notice of appeal on March 29, 2018. This Court
subsequently docketed the appeal at 521 MDA 2018.
On April 4, 2018, the trial court ordered Appellant to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. After receiving
-2-
J-S18026-19
an extension, Appellant timely filed her Rule 1925(b) statement.2 The court
issued its Rule 1925(a) opinion on August 1, 2018.3
Appellant now raises two questions for this Court’s review:
1. Did the Commonwealth present sufficient evidence to establish,
beyond a reasonable doubt, that Appellant was the perpetrator of
either theft or tampering with records . . . ?
2. Did the trial court err as a matter of law or abuse its discretion
in precluding the defense from presenting evidence that the
alleged victims operated illegal gambling devices in their
establishments from which they generated income and which was
relevant to not only the income and accounting techniques of the
victims, but also their credibility?
Appellant’s Brief at 2.
After a review of the parties’ briefs, the record, and the trial court’s
decision, we adopt and affirm on the basis of the trial court’s opinion
addressing the merits of the issues raised on appeal. See Trial Ct. Op. at 14-
20, 23-25. The Commonwealth presented sufficient evidence to establish that
Appellant stole in excess of $100,000, but less than $500,000, from the
____________________________________________
2 Although Appellant raised nineteen additional issues in her Rule 1925(b)
statement, she has abandoned those issues on appeal by failing to raise them
in her brief. See Commonwealth v. Rodgers, 605 A.2d 1228, 1239 (Pa.
Super. 1992) (stating that “[w]e must deem an issue abandoned where it has
been identified on appeal but not properly developed in the appellant’s brief”
(citation omitted)).
3 Despite the fact that Appellant already filed a notice of appeal, the
Lackawanna County Clerk of Judicial Records entered an order on June 14,
2018, denying Appellant’s post-trial motions by operation of law. Again, this
order informed Appellant of his right to file a notice of appeal within thirty
days. Consequently, Appellant filed a second notice of appeal on July 12,
2018, which this Court docketed at 1163 MDA 2018. On August 28, 2018,
this Court consolidated Appellant’s appeals sua sponte.
-3-
J-S18026-19
victims’ convenience stores, and she hid the theft by manipulating the
spreadsheets used to track cash and credit purchases. See id. at 14-20.
Further, the court did not err in precluding evidence that the victims operated
illegal gambling devices in their convenience stores prior to 2012 because (1)
the victims removed the devices before Appellant’s theft; (2) Appellant could
not demonstrate relevance by articulating the amount of income the devices
generated; and (3) Appellant could not cross-examine one of the victims about
an expunged criminal record related to the devices where the underlying
offense was not crimen falsi. See id. at 23-25. Accordingly, having discerned
no abuse of discretion or error of law, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2019
-4-
Circulated 05/13/2019 12:59 PM
COMMON\VEALTH OF IN THE COURT OFCOMMON
PENNSYLVANIA PLEAS OF LACKAWANNA
COUNTY
v.
SHEILA BRONSON
-� u L
OPINION
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This opinion is filed pursuant to Rule 1925(a) of the Pennsylfinia:Rul�of Appellate
Procedure and pursuant to the request of the Superior Court. Defendant Shelia Bronson (herein
after "Defendant") appeals this Court's January 3 0, 2018 Judgement of Sentence. The
Defendant's issues on appeal are as follows, verbatim:
1. Did the Commonwealth present sufficient evidence to sustain each elementof the crimes
charged where the object of the crimes, both theft and tampering With records, were not
linked to the Defendant beyond a reasonable doubt?
2. Did the Commonwealth present sufficient evidence to sustain each element of the crimes
charged when it.relied solely upon the testimony of the victims and failed to present
evidence from a forensic accountant or otherwise linking the alleged loss of funds and
crimes to the Defendant beyond a reasonable doubt?
3. Did the Commonwealth present sufficient evidence to establish, beyond a reasonable
doubt, that the Defendant was the perpetrator of either theft or tampering with records?
4. Was the verdict against the weight of the evidence for each element of the crimes charged
where the object of the crimes, both theft and tampering with records, were not linked to
the Defendant beyond a reasonable doubt?
5. Was the verdict against the weight of the evidence for each element of the crimes charged,
theft and tampering with records, When it relied solely upon the testimony of the victims
and failed to present evidence from a forensic accountant or otherwise linking the alleged
loss of funds and crimes to the Defendant beyond a reasonable doubt?
6. v.,ras the verdict against the weight of the evidence to establish, beyond a reasonable
doubt, that the Defendant was the perpetrator of either theft or tampering with records?
7. Did the trial court en as a matter of law or abuse its discretion in allowing the
Commonwealth to amend the Criminal Information which increased both the grading and
penalty of the offenses charged?
8. Did the trial court err as a matter of law or abuse its discretion in precluding the defense
from presenting evidence that the alleged victims operated illegal gambling devices in
their establishments from which they generated income and which was relevant to not
only the income and accounting techniques of the victims; but, also, their credibility?
9. Did the trial court en- as a matter of law or abuse its discretion in allowing hearsay
statements made by Diana Goodfield through Lorraine Goodfield over the objection of
counsel which deprived the Defendant ofconfrontation and a fair trial? (NT, 11/ 1/1 7, p.
101-102).
10. Did the trial court en as a matter of law or abuse its discretion in allowing, over the
objection of counsel, the admission of prior convictions of theft by deception and had acts
as prior bad acts which werebarred by Pa. R. E. 404(a)(l) and (b)(l) and neither fit within
an exception.under Pa. R.E. 404(a)(2) and (b)(2) nor were they relevantas defined by Pa.
R. E. 401?
11. Did the trial court err as a matter of law or abuse.its discretion in allowing, over the
objection of counsel, the admissions of prior convictions of theft by deception and bad
checks where their probative value did not outweigh the unfair prejudice the admissions
caused in violation of Pa. RE. 403 and 404(b)(2)?
12. Did the trial court err as a matter of law or abuse its discretion in allowing, over the
objection of counsel, the admission of prior civil claims and judgments which were barred
by Pa. R. E. 404(a)(l) and (b)(l) and neither fit within an exception under Pa. R. E.
404(a)(2) and (b )(2) nor were they relevant as defined by Pa. R. E. 401?
13. Did the trial court err as a matter of law or abuse its discretion in allowing, overthe
objection of counsel, the admission of prior civil claims and judgments where their
probative value did not outweigh the unfair prejudice the admissions caused in violation
of Pa. R. E. 403 and 404(b)(2)?
14. Did the trial court e1T as a matter of law or abuse its discretion in allowing the admission
of till reports, over the objection of counsel, where said evidence had lacked prop et'
authentication and foundation? (NT, 11/2/17j p. 71-72).
15. Did the trial court err as a matter of law or abuse its discretion in allowing schedules
prepared by Diana Goodfield which lacked proper authentication and foundation and were
based upon till reports which, also, lacked proper authentication and foundation? {NT;
11.2.17,p. 73�74).
16. Did the trial court err as a matter oflaw or abuse its discretion in allowing the admission
of 1400 pages of bank documents at trial where the documents were provided, for the first
time, in the midst of trial by the Commonwealth thereby depriving defense counsel or a
forensic accountant of adequately reviewing the documents, proffering a defense and,
depriving the Defendant ofa fair trial?
2
17. Did the trial court e1T as a matter of law or abuse its discretion in allowing the admission
of 1400 pages of bank documents at trial where the documents were not properly
authenticated? (N.T., 1116/17, p. 7-8).
18. Did the trial court en as a matter of law or abuse its discretion by allowing the admission
of hearsay testimony ofthe conclusions of the Commonwealth's accountant concerning
bank records and any discrepancies therein through Detective Lisa Bauer? (N.T., 11/6/17,
p. 20).
19. Did the trial court err as a matter of law or abuse its discretion by precluding the defense
from engaging in cross-examination of a key witness for the Commonwealth, Detective
Lisa Bauer, concerningmodification of dates within the original and subsequent amended
affidavit of'probable cause or case summary which improperly and prejudicially
foreclosed the Defendant from proffering an alibi defense? (N.T., 11/6/17, p. 16-18).
20. Did the trial court err as a matter of law and abuse its discretion by imposing a manifestly
excessive sentence within the aggravated range of the Pennsylvania Sentencing
Guidelines, by failing to consider the relevant sentencing criteria ofthe Pennsylvania
Sentencing Code, including the personal characteristics of the Defendant> her
rehabilitative needs) the need for protection of the public and the presence of mitigating
circumstances?
21. Did the trial courr err and abuse its discretion by imposing a manifestly excessive sentence
within the aggravated range of the Pennsylvania Sentencing Guidelines, by utilizing facts
already considered within the calculation of each respective Offense Gravity Score and
failing to state sufficient reasons on the record for the sentence imposed?
For the following reasons, including a review of the record and the facts and history of the case,
this Court's January 30, 2018 Judgment of Sentence should be affirmed,
FACTUAL AND PROCEDURAL HISTORY
Under Docket Number CP-35-CR-0000464-2016, the Defendant was charged with one (1)
count of Theft by Unlawful Taking in violation of 18 Pa. C.S.A. § 392l(a) (Fl), one (I) count of
TheftbyUnlawful Taking in violation of18 Pa. C.S.A. § 392l(a) (F2), two (2) counts of
Tampering with Records in violation of 18 Pa. C.S .A. § 4 l04(a), and one (l) count of Receiving
Stolen Property in violation of 18 Pa. C.S.A. § 3925(a).
On November 1, 2017, following an initial mistrial, trial before a jury commenced
wherein the Commonwealth presented several witnesses. The victim, Lorraine Goodfield
3
(hereinafter "Lorraine), owner of the Cousin's Convenient Marts testified that she and her late
husband, LaITy Goodfield, worked in the convenient store industry for years before they
purchased the Eynon store in 2002, after Larry retired from accounting. Id. at 28-30. In 2007,
she opened a second Cousin's Convenient Mart location in Jessup, Pennsylvania (hereinafter,
"Jessup store"). Id. at 31-32. Lorraine testified that she actively worked in the states, but Larry
handled the finances and accounting, Id. at 34-35. Lorraine explained that the business was "self-
sufficient" and provided the Goodfields with a small salary while still leaving enough money in
the business account to cover expenses and emergency repairs. Id. at 35. Lorraine testified that in
early 2011, Larry was diagnosed with liver cancer and they decided to hire a bookkeeper to assist
with the stores' accounting while Larry was receiving cancer treatment. Id. at 38-39. Lorraine
related that the Defendant's daughter, Jessica Bronson, worked as a cashier at the Jessup location
and the Defendant had long told her that she was a "numbers person" and would love to help with
the businesses' accounting work.. Id. at 39-40. Around April of 2011 Larry hired the Defendant;
she first worked as a cashier before she took overthe bookkeeping. Id. at 42.,.43.Lonaine
described the Defendant's duties as collecting the money dtops out of the safes, counting the
cash, and entering the amounts of cash and credit card sales into an excel spreadsheet, which
Larry checked daily, Id. Lorraine stated that the Defendant assisted Larry with the bookkeeping
until his death in May 2012. Id. at46.
After Larry's death, Lorraine's duties increased to include malting the schedule, ensuring
the registers were funded, and dealing with all of the venders, all while still working shifts as a
cashier. Id. at 48"49. Lorraine attested that after Limy fell ill> the Defendant became the only
other person with a key to the safes, and therefore the only person with access to the money in the
safes. Id. at '54. Lorraine explained that at the end of each shift, a cashier would place all of the
4
cash, credit and debit card sales, as well as redeemed lottery tickets, into a bag and deposit it in
the store safe. Id. at 57-58. Lorraine stated that the Defendant was responsible for collecting the
bags from each store before returning to her desk at the store in Eynon to count the money arid
enter the data into ah Excel spreadsheet. Id. at 58-61. She explained the Defendant's course of
action to the jury. Id. Lorraine provided that upon entering all the data into the spreadsheet, the
Defendant would notify Lorraine that the deposit was ready or if an error in calculating occurred.
Id. at 63. Lorraine testified that she was solely responsible for depositing cash into the business'
bank account. Id. at 63-64. The Defendant did not have access to the stores' bank account or
payroll. Id. at 66. Lorraine conceded that once the Defendant finished data entry to generate the
spreadsheet, Lorraine would review the bottom line of the spreadsheet for any shortages; however
she did not thoroughly examine the accuracy of the data entered. Id. at 68.
Lorraine explained that initially it was difficult to gauge profit because of seasonal impact.
Id at 71. However in2013,Lorraine noticed that the business profits declined, but attributed it to
repairing a gas tank and an air conditioning unit Id. at74. Lorraine noted that.she simultaneously
observed enhancements to the Defendant's lifestyle; for example, the Defendant frequently
requested time off for expensive family vacations to Disney or to a beach. Id. at 76. Lorraine
became c::onfused as to how the Defendant was able to afford those expensive trips on her modest
salary as the Defendant was solely employed by the store and it did not make sense that the store
was struggling financially, but theDefendant financially thrived. Id. at 76-78. Lorraine concealed
the stores' financial struggles fromthe customers and, importantly, the Defendant. Id. at 78.
Lorraine stated that in 2014, her daughter, Vanessa Goodfield, graduated from college and joined
the family business to assist Lorraine and Diana Goodfield Boccella, Lorraine's other daughter
and the business manager of Cousin's Convenient Marts, and fill :in for the Defendant while she
5
vacationed. Id. llt 79-82. The Defendanttrained Vanessa on how to collect the money frorn each
safe and enter the data into the Excel spreadsheet. Id. at 80. In September2014, Lorraine
consulted with an accountant to discuss the business decline and potential factors included
numerical errors and inventory management. Id. at 82.
In 2015, the business could not pay all of the food and drink vendors, so Lorraine
withdrew $25,000 from her personal savings to sustain the business. Id. at 92. Lorraine also
testified that in 2015 she spent her free time examining surveillance camera footage searching fol"
thefts or any plausible explanation for the business decline. Id. at 93. Again, Lorraine consulted
with heraccountant, and she learned the business had lost hundreds of thousands of dollars in the
past year alone. Id. at 94. She began to blame herself for the failing business. Id. In an attempt
to increase Sales, Lorraine borrowed money from her son to obtain a liquor license, and pay for
store renovations. Id. at 94-95. When sales did not increase, and Lorraine confirmed no
cigarette or gas thefts, she decided to "follow the money," with her daughter Diana. Id. at 98.
Specifically, during one shift, Diana performed a separate data entry before the Defendant. Diana
compared her separate Excel spreadsheet to the Defendant's Excel spreadsheet, and discovered a
discrepancy in the amount of actual cash sales earned versus the amount entered for the
credit/debit sales. Id. at 98- 102. Lorraine testified that Diana uncovered the Defendant's
method of theft where the Defendant lowered the actual amount of cash collected and
compensated the "bottom line," by entering an inflated credit/debit amount. The Defendantthen
pocketed a portion of the actual cash collected. Id. Lorraine believed that the Defendant drove
the actual cash sales from the Jessup store to the Eynon store, andwhile she was driving) the
Defendant would remove the actual cash sales out ofthe Jessup bag and then manipulate the
6
"bottom line" number so that the amount of credit/debit sales concealed the actual cash loss. Id.
at 103.
The Defendant manipulated the Excel spreadsheet data for both stores before she
combined the left-over cash into a single deposit slip. Id. at 115,-118. Lorraine explained that.if
the Defendant hacl stolen $200.00 dollars from the Jessup location, she would lower the actual
cash totals of both stores by$] 00.00 each, even though the actual cash only came from the Jessup
store. However, Lorraine related that the Defendant's theft.method and data manipulation could
be independently verified by Gulf Oil Company which compiled its own credit/debit sales log.
See N.1;'. Trialt November 2, 2017, at p. 14�15.
Subsequently.Lorraine contacted the Lackawanna County District Attorney Office's to
conduct an investigation. See N. T. Trial, November 1, 2017, at p. at 105. During the
investigation, Detective Lisa Bauer verified the correct credit/debit sales via the data compiled by
Gulf Oil Company. Id. at 104-105. Through the Lackawanna CountyDistriot Attorney's Office,
Lorraine leamed that since 2013, the Defendant stole approximately $525,000.00 in actual cash
sates. Id. at 106-107.
Next, Lorraine's daughter, Diana Goodfield Boccella, (hereinafter "Diana'Ttestified that
after her father's death, she became the business managerin June 2012. See N. T. Trial,
November 2, 2017, at p. 21-22. She stated that her responsibilities included oversight of
accounts payable and accounts receivable, payroll, quarterly payroll-related taxes, cashier
management, as well as invoicing and inventory pricing. Id. at 23-25; 136. In 2014, Diana
described howthe business declined significantly. Id. at 33-34. During this time, Diana noticed
that the profits were not supported by the actual sales, because the actual sales were su bstantial.
Id. at 38.
7
Diana testified that a year later the business struggled to pay the bills despite profityields
in excess of $100,000.00. Jd. at 41-47. Diana recalled that Lorraine contributed her personal
savings to the business. Id. at 42-43. In response, Diana investigated the data, and researched
common theft schemes in the convenient store industry, Id, at45-47. After "extensive, exhaustiv
searches" and a process of elimination Diana examined the actual cash sales. Id. at 48-49. She
confirmed that the Defendant solely administered the actual cash sales, and consequently, Diana
scrutinized the Defendant's daily duties. Id. at 50. On December 3, 2015, Diana performed her
own data entry ofthe cash, credit/debit, and lottery sales conducted during one shift at the Eynon
store. Id. at 51-52. The next day, the Defendant processed the actual cash bagin the same way
she normally completed her daily data entry. Id. at 53. Accordingly, Diana compared her own
data entry with the Defendant's data entry. She discovered that both end results matched, but the
Defendant's data entry showed $90.00 dollars less in actual cash with an additional $100.00
dollars in credit/debit card sales. Id. at 54-55. Diana reviewed the cash.register tapes, and
confirmed that the Defendant stole a portion of the actual cash sales, and inflated the credit/debit
card sales in order to balance the end result. Id. at 56. Based upon this discovery, Diana
compared past data entries to till reports and uncovered a pattern of reduced cash sales with
inflated credit/debit card sales. Id. at 57. She detected that the inflatedcredit/debit card sales
amount corresponded with the reduced cash sales amount. To that end, she uncovered over
$1,000.00 in cash sales stolen in December2015. Id. at 58.
In support of her testimony, Diana explained the personal Excel spreadsheet she created to
detect the-Defendant's theftmethod. Id. at 60. Diana explained each column and entry on her
Excel spreadsheet, delineating cash, checks, coupons, accounts, credit cards, vendor pay out,
lottery pay out, employee credit, losses, andpizza pay outs. Id. at 60-66. Also on the Excel
8
spreadsheet, Diana showed a report section consisting of total tenders, lottery payouts, and safe
drops. Id. at 67. She also utilized a tin report during each shift to independently verify the actual
cash sales. Id. at 69. Diana compared the cash number from the till to the cash plus the owes, less
the safe drops, on her Excel spreadsheet. Id. at 74-75. Diana showed the jury the discrepancies in
the Defendant's data entry using the December 3, 2015 report. Diana demonstrated that her
actual cash sales calculations differed from the Defendant's by $90.00 dollars while the
Defendant's credit/debit card sales calculation were inflated by $90.00 dollars Id. at 79-83. Diana
labeled the Defendant's theft pattern of reducing the actual cash sales and increasing the
credit/debit card sales as "scheme one," because she discovered a second theft method Where the
Defendant would alter the total amount of tenders in the report section to reflect less sales than
actual sales. Diana labeled the Defendant's alternate theft pattern as "scheme two," which is only
traceable through the till. Id. at 83, 88-91, She testified that although tills must be retained for
seven years, several past tills were destroyed or otherwise missing. Id. at 93.
Finally, Diana explained that all actual cash sales and credit/debit card sales can be
independently verified through the Gulf Oil Company. Id. at 93. She explained that the "Gulf
Reports" arc generated daily through the Gulf Oil Company network, The Gulf Report generates
the inside sales and outside sales as well as indentifies high yielding products. Id. at 94, Diana
related that through the Gulf reports she calculated a number of "scheme one," thefts. Id. at 94-
95. For example, she Showed a $300.00 dollar discrepancy between the Defendant's April 20,
2014 Excel spreadsheet and the corresponding Gulf report at the Eynon location. Id. at 104-106.
The Defendant's Excel spreadsheet showed inflated credit/debit card sales by $300.00 dollars. Id.
at 107. Similarly, Diana showed discrepancies between the Defendant's April 30, 2014, Excel
spreadsheet at the Jessup location and the Gulf report, Id. at 110-115.
9
Likewise, the Commonwealth introduced the Gulf reports and the Defendant's Excel
spreadsheets at the Eynon location during the following periods: January 2015 through December
2015; January 2014 through December 2014; and January 2013 through December 2013. Id. at
119-122. The Commonwealth also introduced the Guff reports and the Defendant's Excel
spreadsheets at the Jessup location during the following periods'. January 2015 through
December 2015; January 2014 through December 2014; and January 2013 through December
2013. Id. at 122-123.
Importantly, the Commonwealth introduced a detailed theft analysis that illustrated each
date and the amount of cash stolen. Id. at 124. Diana eorroborated the theft analysis showing the
Defendant's forced balancing, and ultimate «scheme one," and "scheme two" thefts. Id. at 125-
126. She testified that the Defendant's vacation days coincided with days that there was no
forced balancing or thefts, Id. at 130. However, in May 2015, Diana recalled a "scheme one"
theft occurred daily. She admitted that the extent of "scheme two" thefts could not be established
because those tills were destroyed. Id. at 131-132. Diana's final calculation of "scheme one" and
"scheme two" thefts amounted to a total theft of$525,537 .87. Id. at 132.
Vanessa Goodfield (hereinafter "Vanessa"), graduated from Temple University in 2014,
and became the general manager of Cousin's Convenient Marts. See N.T. November 2, 2017, at
p. 154-155. Vanessa testified that her responsibilities included ordering food and beverage
products, meeting with vendors, pricing, counting cash, reconciling the actual cash bags, and
assisting Lorraine. Id. at 155. Vanessa learned through the Defendant how to reconcile the actual
cash bags. Id. Specifically, Vanessa trained with the Defendant from June 9, 2014 through June
11, 2014. Id. at159-l62. Vanessanoted that no thefts occurred on these dates. Id. at 163.
10
Lastly, Detective Lisa Bauer, of the Lackawanna County District Attorney's Office who
testified that in December2015, the Goodfieldfamilypresented various documents to
substantiate the Defendant's theft methods. See N.T. November 6, 2017 (AM), p� 9-12. As part
of her investigation, Detective Bauer interviewed the Defendant at her office. Id. at 13.
Detective Bauer inquired about the Defendant's duties andresponsibilities at Cousin's
Convenient Marts. She noted that the Defendant abruptly concluded the interview when she
questioned her aboutthe discrepancies in the actual cash sales and credit/debit card sales as well
as the altered Excel spreadsheets. Id. at 13-17. Detective Bauer testified that she consulted with
an accountant, and discovered a second theft scheme. Id. at 19. Initially, Detective Bauer related
that the Defendant stole small amounts of cash until she became more comfortable with the cash
bag routine and the Goodfield family. Id. at 21. She testified that the thefts occurred between
2013-2015, when the Defendant's annual salaries totaled $11,242.50, $10,045, and $10,790
respectively. Id. at 22. She gave detailed and extensive testimony regarding the Defendant's
financial
. records, including the Defendant's
.
boyfriend's
.
annual salary and settlement sum. Id. at
23�24. Detective Bauer testified that between 2013 and 2015, the Defendant deposited
approximately $186,563.21 in cash into her personal savings account. In addition, the Defendant
deposited $263,669.98 into her personal checking account. Id. at 33,...34. After an-est, the
Defendant's cash deposits reduced to $6,524. Id. at 35. In fact, Detective Bauer testified that
because of insufficient funds, the Defendant's bank account is now closed. Id. at 36.
Detective Bauer detailed the Defendant's financial transactions and spending history. She
explained tbattheDefendant'utilized her bank account for vehicle payments and vehicle
purchases. Id. at 39-41, 45�46. For example, Detective Bauer noted that on July 16, 2015, the
Defendant deposited $42,650.00 in cash into her personal checking account, Id. at 50. On that
11
same day; the Defendant paid $34,171.31 via a personal check towards a remaining vehicle. Id.
at 52-53. Shortly thereafter, the Defendant paid $30}000.00 via personal check towards a down
payment on a new home, Id. at 53-54. Detective Bauer testified that during the theft schemes,
the Defendant utilized her bank account to make payments on approximately nine (9) major credit
cards. Id. at 54-55. She also testified that during the theft schemes, the Defendant owed and paid
approximately thirty (30) creditors. Detective Bauer noted that since arrest all of the Defendant's
credit accounts are delinquent, and her house is in foreclosure. Id. at 59-60, 63. Detective Bauer
opined that the Defendant would transfer stolen funds into her boyfriend's bank account, and
subsequently back again into her own as a means to "cause confusion." Id. at 68-69. Ultimately,
she concluded that the Defendant stole approximately$525,000.00 in cash sales from Cousin's
Convenient Marts, while the Defendant and her boyfriend held a combined amount of
$374,117 .00 consisting of cash deposits in their personal bankaccounts. Id. at 77. Also,
Detective Bauer concluded that the Defendant utilized approximately $150,000.00 of untraceable
cash to purchase various items, without ever depositing the money into her bank account Id. at
78.
The Defendant then took the stand in her own defense; she testified as to her hiring,
training, and duties while employed by the Goodfields, N.T. T'rial, November 6; :2017 (PM) at
p. 41-45. She explained her process for collecting and processing the bags for the data entry to
create the spreadsheets. Id. at 45-53. The Defendant cited sources such as her fiance's income
and savings with respect to her financial records showing significant cash flow. Id, at 66-67. She
noted that her fiance did not have access to a bank prior to moving to this area. Id. at 67. The
Defendant stated that the frequent transactions associated with her bank account were attempts to
build credit to buy a home and explained her shuffling of funds in order to pay off debts. Id. at
12
68..:.11. The Defendant also told the jury that she used her bank account to receive funds and to
pay her adult daughter's hills, including car payments and insurance. Id. at 75-76.
After deliberations, the jury convicted the Defendant ofone (l) count of Theft by
Unlawful Taking -In Excess of $100,000 but Less Than $500,000.00, and one (1) count of
Tampering With Records. This Com:trequested a pre-sentence investigation report, and up011
review of the thorough report as well as consideration of the sentencing guidelines including all
mitigating and aggravating factors, this Court sentenced the Defendant on January 30, 2018 as
follows:
16 CR 464, CT 1- Theft by Unlawful Taking: thirty-six (36) - seventy-two {72)
months, with three (3) years probation
16 CR 464, CT3 Tampering With Evidence: seventeen (17)- thirty-six (36)
=
months, with two (2) years probation, consecutive to Count l.
Moreover, since the Defendant was on supervision during the commission of the
underlying offense, this Court revoked the Defendant's original sentences and re-sentenced as
follows:
01 CR 70, CT 3: six (6) -twelve (12) months, with three (3) years probation
01 CR 1750, CT 2: six (6)- twelve (12) months, with three(3) years probation
01 CR 1751, CT 2: six (6)-twelve (12) months, with three (3) years probation
03 CR 1094, CT 1: six (6) - twelve (12}months, with three (3) years probation
All sentences were deemed consecutive, and aggregated to seventy-seven (77) to one
hundred and fifty-six (156) months of incarceration followed by seventeen (17) years ofprobation
to be supervised by the Pennsylvania Board of Probation and Parole.
DISCUSSION
I. THE EVIDENCE WAS SUFFICIENT TO SUPPORT TUE VERDICT
13
Jssues one through three question whether the evidence presented at trial was sufficient as
a matter of law to establish every element of theft by unlawful taking and tampering with records,
beyond a reasonable doubt. The Defendant further challenged whether the evidence presented at
trial was sufficient since the evidence was solely based upon the testimony of the victims, rather
than a forensic accountant. Upon review of the record, including the testimony and evidence
presented at trial, this Court concludes as a matter of law that the evidence was sufficient to
support the jury's verdict.
A claim challenging the weight of the evidence concedes the sufficiency of the evidence.
See Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000). The Defendant did not assert either
claim in the alternative therefore, the Defendant's challenge as to the sufficiency of the evidence
claim should be denied. The standard ofreview regarding a sufficiency of the evidence claim
requires a determination as to "whether the evidence, viewed in the light most favorable to the
Commonwealth, is sufficient to enable a reasonable jwy to find every element of the crime
beyond a.reasonable doubt." Commonwealth v. Laird, 988 A.2d 618, 624 (Pa. 2010) citing
Commonwealth v. w·atkins, 843 A.2d 1203, 1211 (.Pa. 2003). See also, Commonwealth v.
Rivera, 983 A.2cl 1211, U20 {Pa. 2009) (whether viewing all evidence and reasonable
inferences viewed in favor of the Commonwealth as verdict winner establishes all elements of the
offense beyond a reasonable doubt).
Under this standard, the fact-finder is given deference and the appellate court rnay not
substitute its own judgment for the fact-finder. Moreover, the Commonwealth need not preclude
every possibility ofinnocence, Rather, the appellate courts are instructed:
any doubts regarding a defendant's guilt may be resolved by the fact-finder unless
the evidence is so weakand inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The Commonwealth may
sustain its burden of proving every element of the crime beyond a reasonable
14
doubt by means ofwholly circumstantial evidence, Moreover, in applying the
above test, the entire record must be evaluated and all evidence actually received
must be considered. Finally, the trier of fact while passing upon the credibilityof
witnesses and the weight of the evidence produced, is free to believe all, part or
none of the evidence.
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001)
In the present case, the Commonwealth alleged that between January 12, 2013 and
December 3, 2015, the Defendant stole funds in excess of$ I 00,000.00 but less $500,000. 00, that
were the property of the Goodfield Convenient Stores, d/b/a Cousin's Convenient Marts, and that
the Defendant took those funds with the intent to deprive the Gcodfields thereof in violation ofl 8
Pa. C.S. § 392l(a), Theft By Unlawful Taking, Sec Amended Criminal Information, Count 1.
The Commonwealth also alleged that between January 12, 2013 and December 3, 2015, the
Defendant stole funds in excess of $500,000.00, that were the property of the Goodfield
Convenient Stores, d/b/a Cousin's Convenient Marts, and that the Defendant took those funds
with the intent to deprive the Goodfields thereof in violation of 18 Pa. C.S. § 392J(a), Theft By
Unlawful Taking. See Amended Criminal Information, Count 2. Additionally, the
Commonwealth alleged that, between January 12, 2013 and December 3, 2015, knowing she had
no authority to do so, the Defendant, while employed as a bookkeeper for Cousin's Convenient
Marts, did falsify Excel spreadsheets with the intent to deceive or conceal that she took unlawful
control over funds in excess of $1 OQ,000.00 but less $500,000.00, that were the property of the
Goodfield Convenient Stores d/b/a Cousin's Convenient Matts in violation of 18 Pa. C.S. §
4104(a), Tampering With Records. See Amended Criminal Information, Count 3. Lastly, the
Commonwealth alleged that, between January 12, 2013, and December 3, 2015, knowing she had
no authority to do so, the Defendant.while employed as a bookkeeper for Cousin's Convenient
Marts, did falsify Excel spreadsheets with the intentto deceive or conceal that she took unlawful
15
control over funds in excess of $500,000.00, that were the property of the Goodfield Convenient
Stores d/b/a Cousin's Convenient Marts in violation of 18 Pa. C.S. §4104(a), Tampering With
Records. See Amended Criminal Information, Count 4.
Following witness testimony and the presentation of evidence, the jury convicted the
Defendant of one (1) count ofTheftby Unlawful Taking in violation of L8 Pa. C.S. § 392l(a) and
one (1) count of Tampering With Records in violation of 18 Pa. C.S. § 4104(a).
Pursuant to 18 Pa; C.S. § 3921(a): "a person is guilty of'theft if he unlawfully takes, or
exercises unlawful control over, movable property of another with intent to deprive him thereof."
Pursuant to 18 Pa. C.S. § 4104(a): "[a] person is guilty of tampering with records [when]
"knowing that [s]he has no privilege to do so, [sjhe falsifies, destroys, removes or conceals any
writing or record, or distinguishing mark or brand or other identification with intent to deceive or
injure anyone or to conceal any wrongdoing." The Commonwealth may prove any or all
clements of a crime by circumstantial evidence. Commonwealth v. Alvarado, 481 A.2d 1223, at
1225 (Pa. Super.l984); See also Commonwenlth v. Cichy,323 A.2d 817, 818 (Pa. Super.
1974) citing Commonwealth v. Bailey, 292 A.2d 345, 346 (Pa, 1972)(finding that the
Commonwealth need not "establish guilt to a mathematical certainty" and a case may rest entirely
upon circumstantial evidence, as long as the conviction is based on more than conjecture)
In the present casej viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, the evidence was sufficient to prove the elements of Theft by
Unlawful Taking andTampering with Records, beyond a reasonable doubt. First, learning the
business' practices through her trainingwith Larry, the Commonwealth demonstrated the
Defendant's familiarity with Excel spreadsheet data entry and accounting methods. In her
capacity as bookkeeper, the Defendant altered the actual cash sales data to conceal her theft
16
schemes. Lorraine, the owner of Cousin's Convenient Marts, and Diana, the business manager of
Cousin's Convenient Marts testified that Larry hired the Defendant as a bookkeeper prior to
death. Both Lorraine and Diana offered parallel testimony as to their reliance
,, on the Defendant;
and her employment responsibilities, the Defendant's knowledge of data entry, and her
opportunity to commit the theft schemes. SeeN.T. Trial, November 1, 2017, at.p. 42-46; N.T.
Trial, November 2, 2017, atp, 28-29. Lorraine testified as to the Defendant's role and duties
within the store, as well as her exclusive access to the cash bag drops and safe key. Id. at p. 54.
In fact, Lorraine and Diana testified that both eliminated any alternative causes of cash loss. See
N.T. Trial, November 1; 2017, at p, 98; N.T. Trial, November 2, 2017; at p. 45-50. Diana
described the methods she employed to discover the Defendant's theft schemes as well as the
actual cash sales stolen, N.T. Trial, November 2, 2017 at p. 45-47. Lorraine's testimony
regarding the discovery ofthe Defendant's theft schemes corroborated Diana's investigation of
the cash loss. N.T. "I'rial, November l, 2017 at p. 93-94; 98-102. Diana explained that during
one shift, she completed the Defendant's duties before the Defendant and then compared her
personal data entry to the Defendant's version. Through this comparison, Diana uncovered
discrepancies between actual cash sales and credit/debit card sales. N.T. Trial, November 2,
2017, at p, 51-53. She discussed her review of the cash register tapes, which confirined that the
Defendant stole a portion of the actual cash sales and inflated the credit/debit card sales so that
the total amount balanced. Id. at 56. Asa result, Diana compared the Defendant's previous data
entries and discovered numerous instances where the actual.cash sales were short while the
credit/debit card sales were increased by the same amount as the missing cash. Id. at 57.
She further discussed the importance of a till report. Id. at 69. Diana testified that the till
reports independently verified the actual cash sales by utilizing the cash number from the till and
17
comparing it to the cash plus the owes, less the safe drops, on the Excel spreadsheet. Id. at 74-75;
In particular, Diana referenced the December 3, 2015 report to show thejury how she completed
her own actual cash sale entry versus the Defendant's actual cash sale entry. She testified that her
actualcash sales calculation was missing $90;00 while the Defendant's credit/debit card sales
calculation was increased by $90 .00. Id. at 79-83. Diana reported that several.past tills were
destroyed ot otherwise missing, however she indicated that actual cash sales and credit/debit card
sales could be independently verified through the Gulf Oil Company reports despite the missing
till reports. Id. at 93. Diana explained that the Gulf Oil Company's reports were generated daily
through the Gulf Oil Company network and included inside sales and outside sales, as well as
high yielding products. Id. at .94. She used the Gulf Oil Company reports to detect several of the
Defendant's thefts. Id. at 94-95. Most importantly, Diana used the Gulf Oil Company reports to
calculate the total amount of the Defendant's thefts. Diana demonstrated her calculations for the
jury showing the actual cash sales compared to the Defendant's manipulated entries. Id. at 99-
102, 104-107, 110-115, She testified that, with her sister Vanessa, she compiled all of the actual
cash sales and determined the total theft amount, which was re-calculated and corroborated by
Detective Lisa Bauer and an accountant. Id. at 166. In support of Diana's testimony, the
Commonwealth introduced the Gulf Oil Company reports and corresponding Excel spreadsheets
entered by the Defendant at the Eynon location for January 2015 through December 2015;
January 2014 through December 2014; January 2013 through December 2013. Id. at 119-122.
The Commonwealth also presented the Gulf Oil Company reports and corresponding Excel
spreadsheets entered by the Defendant regarding the Jessup location during 2013, 2014, and
2015. Id. at 122-123. Finally.the Commonwealth presented an extensive theft analysis generated
by Diana, which itemized all of the dates and cash stolen. Id. at 123-124. Diana remarked that
18
during the Defendant's period of vacation, the Excel spreadsheets showed no forced balanced or
thefts. Id. at 130, She concluded the Defendant's total theft schemes amounted to .i525,537.87.
Id. at 132.
In light of her history and experiences investigating financial thefts, Detective Bauer
corroborated the Goodfield family's suspicions and determined that a series of thefts occurred at
Cousin's Convenient Marts. See N.T. November 6, 2017 (AM), p.12. Detective Bauer
confirmed that the Defendant altered the Excel spreadsheets by inflating the credit/debit card
sales, lowering the actual cash sales, and pocketing a portion of the cash. Detective Bauer
described the Defendant's theft schemes as "common" methods utilized by bookkeepers. Id. at
12-13, She reviewed all the evidence with an accountant, who substantiated the Defendant's theft
schemes oflowering the actual cash sales and increasing the credit/debit card sales. Detective
Bauer also discussed her investigation ofthe Defendant's lengthy debt history and modest
income, compared to an increasingly large cash flow, extensive spending, vehicles, vacations and
an upgraded new home. Detective Bauer testified that after the Defendant's arrest, the large cash
flow evaporated. N.T. Trial, November 6, 2017 (AM.), at p, 7, 22-58.
therefore, viewed in the light most favorable to the Commonwealth as verdict winner, the
evidence presented at trial is sufficient to support the jury's verdict, where Lorraine, Diana, and
Vanessa all testified to the Defendant's role as bookkeeper, including her duties and knowledge
of Excel spreadsheets and cash bag routines. The Goodfields testified as to the amount of stolen
cash sales, the length of time the thefts occurred, the manipulated spreadsheets as well as the
independent Gulf Oil Companyreports. The Commonwealth presented extensive evidence of the
Defendant's theft schemes compared to the independent sources which verified cash loss and the
inflated credit/debit card sales. Ultimately) the evidence shows that the Defendant exercised
19
control over significant portions of actual cash sales, which she unlawfully stole from Cousin's
Convenient Marts and intended to deprive the Goodfield family of their property. As such,
viewed in the light most favorable to the Commonwealth as verdict winner) the evidence is
sufficient to establish (1) thefts of actual cash sales from Cousin's Convenient Matis; (2) thatthe
thefts occurred through forced balancing of the business> Excel spreadsheets; (3) that the
Defendant was responsible for the thefts in excess of $100)000.00 but less than $500,000.00; (4)
that the Defendant's actions were intentional and deceitful; and (5) and that the Defendant
falsified the records in an attempt to conceal the thefts.
Therefore, upon review of the applicable case law and the evidence presented at trial, this
Cami finds that the evidence presented at trial was sufficient to support the jury verdict of guilty
on Count 1, Theft by Unlawful Taking in violation of l 8 Pa, C.S.A. § 3921(a), and Count 3,
Tampering With Records in violation of 18 Pa. C.S,A. § 4104(a).
II. THE VERDICT WAS NOT CONTRARY TO THE WEIGHT OFTHE
EVIDENCE
Jssues four through six challenge the jury' s verdict as against the weight of the evidence.
The Defendant asserts that the evidence relied solely on the testimony of the victims, rather than a
forensic accountant.
Determination of whether a verdict is against the weight ofthe evidence is within the
discretion of the trial court. Commonwealth v. Widmer, 744 A.2d 745, 751-:-52 {Pa. 2000)
citing Commonwealth v. Brown, 648 A.2d 1177{Pa.1994). A claim that.a verdict is contrary
to the weightof the evidence, concedes that there is sufficient evidence to sustain the verdict. Id.citing Commonwealth v. Whiteman, 485 A.2d 459 (Pa. Super. 1984). A weight-of-the-
evidence claim under Pa. R. Crim. P. 607 requires the defendant to show that the verdict is so
contrary to the evidence as to shock one's sense of justice. Commonwealth v. Boyd, 73 A.3d
201269, 1275 (Pa. Super. 2013) (citations omitted). The role of the trial judge is to determine that
"notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or
to give them equal weight with all the facts is to deny justice." Commonwealth v. Widmer, 744
A.2d 745, 751-52 (Pa. 2000) (citing Thompson v. City of Philadelphia, 493 A.2cl 669, 673
(Pa. 1985).
Here, as discussed above, this Court found sufficient evidence to support the jury's
verdict. The fact that the verdict was largely based upon the testimony of the victims, rather than
a forensic accountant, does not justify overturning the jury's verdict. The victims and detective
detailed the analysis and demonstrated the calculations for the jury. The Commonwealth
presented the testimony of multiple witnesses that was consistently sufficient.to establish the
Defendant's guilty. The evidence convinced the jury beyond a reasonable doubt to convict the
Defendant of the crimes charged. D1e Defendant has not presented any colorable argument in
support of her weight of the evidence claim. The Defendant has not pointed to any fact that
should clearly be given greater weight or demonstrated that the verdict is contraryto the evidence
as to shock one's sense of justice. Sec Boyd, supra, and \Vidmer, supra.
Therefore, the verdict at trial was notagainst the weight of the evidence, as no evidence
presented weighed so heavily against the verdict as to shock ones sense of justice.
DI. THE COMMONWEALTH PROPERLY AMENDED THE CRIMINAL
INFORMATION
Issue seven contends that the trial Court erred or abused its discretion in allowing the
Commonwealth to amend the Criminal Information as it increased both the grading and penalty
of the offenses charged. The amendment was proper under the Pennsylvania Rules of Criminal
21
Procedure, and the Defendant suffered no prejudice. The Pennsylvania Rules of Criminal
Procedure provide the following regarding amendment of a Criminal Information:
The court may allow an information to be amended, provided that
the information as amended does not charge offenses arising from a different
set of events and that the amended charges ate not so materially different
from the original charge that the defendant would be unfairl y prejudiced,
Pa. R. Crim. P. 564.
Unfair prejudice may be determined by the following six factors: ( 1) whether amendment changes
the factual basis for the charges; (2) whether the amendment adds new facts previously unknown
to the defendant; (3) whether the factual scenario was developed during the preliminary hearing;
(4) whether the amendment changed the description of the charges; (5) whether a change in
defense strategy was necessary; and (6) whether the timing of the amendment allowed ample
notice and preparation. Commonwealth v. Witmayer, 144 A.3d 949 (Pa. Super. 2016);
Commonwealth v. Veon, 109 A.3d 754 (Pa. Super.2015). The mere possibility amendment of
an information may result in a more severe penalty due to addition of charges is not, of itself,
prejudice for pm-poses of determining whether to permit an amendment of au information,
Commonwealth v. Picchianti, 600 A;2d 597, (Pa. Super. 1991).
On October 16, 2017, nearly one (1) month prior to the commencement oftrial, the
Commonwealth amended the Criminal Information, In comparison, the previous Criminal
Information charged the Defendant with one (1) count of Theft by Unlawful Taking in violation
of 18 Pa. C.S. § 392l(aJ (F2), one (1) count of Receiving Stolen Propertyin violation of 18 Pa.
C.S. § 3925 (F2), and one (1) count of Tampering \Vith Records in violation of 18 Pa. C.S. §
4104(a) (Ml). The amended Criminal Information charged the Defendant with two (2) counts of
Theft by Unlawful Taking in violation of 18 Pa. C.S. § 3921(a), one count relative to an amount
in excess of$l001000.00 but less than $500,000.00; and one count relative to an amount in excess
22
of $500,000.00. Similarly, the amended Criminal Information charged the Defendant with two (1)
counts of Tampering With Records in violation of 18 Pa. C.S. § 4104(a) (Ml), one count relative
to an amount.in excess of $100,000.00 but less than $500,000,00, and one count relative to an
amount hi excess of $500,000.00. AU the criminal offenses in the amended Criminal Information
arose from the same factual scenario wherein the Defendant was alleged to have abused her role
as bookkeeper altering Excel spreadsheets without the authority to do so and unlawfully stealing
cash with the intent to deprive the Goodfield family of their property. The criminal offenses in the
amended Criminal.Information specified monetary amounts, and were based upon the same
factual circumstances previously alleged and not unknown to the Defendant. The Defendant.had
ample notice and opportunity to prepare without changing her defense strategy. As such, the
Defendant was not unfairly prejudiced by the amended Criminal lnformation.
IV. TffiS COURT PROPERLY PRECLUDED THE DEFENDANT FROM
PRESENTING TESTIMONY REGARDING AN ILLEGAL GAMBLING
DEVICE
Issue eight contends that the trial Court erred or otherwise abused its discretion in
precluding the Defendant from presenting evidence thatLorriane Goodfield operated illegal
gambling devices in Cousin's Convenient Marts ..
The admissibility of evidence is within the discretion of the trial court and will only be
reversed upon showing a clear abuse of discretion. Commonwealth v. Drumheller, 808 A.2d
893, 904 (Pa. 2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003)
(quoting Commonwealth v. Stallworth, 781 A.2d 110, 117 (Pa. 2001)); Commonwealth v.
Tyson, 119 A.3d 353, 357, appeal denied, 128 A.3d 220 (Pa. Super 2015). An abuse of
discretion is more than an error in judgment; it is a misapplication of the law or a showing that the
exercise of judgment was "manifestly unreasonable, or the result of bias, prejudice, ill-will or
23
partiality, as shown by the evidence of record." Tyson, 119 A.3d at 357 quoting
Commonwealth v. Harris, 884 A.2d 920, 924 (Pa.Super.2005), appeal denied, 928 A.2d 1289(Pa. 2007).
"Relevance;' is the threshold requirement for the admissibility ofevidence.
Commonwealth v. Cool� 952 A.2d 594, 612 (Pa. 2008). Evidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action. Pa. R. E. 401. Under Pa. R.. E. 40Jj a court may
exclude otherwise relevant evidence "if its probative value is outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence." Pa. R. E. 403.
The Defendant presented a motion in limine seeking to admit evidence of Lorraine
Goodfield's expunged ARD record regarding illegal gambling machines inside Cousin's
Convenient Marts. N.T. Motions, November 1, 2017, atp, 3. The Defendant sought to
introduce the existence of the illegal gambling machines as an additional source. of income and to
questionLorraine's credibility. Id. at 4.
This Courtfound the evidence inadmissible since Lorraine could not be cross-examined
about the ARD record since the underlying offense was not crimen falsi, See. Pa. R. E. 609.
Importantly, the underlying offense was expunged. See Pa. RE. 609, comment (evidence of
admission to an Accelerated Rehabilitative Disposition program under Pa. R. Crim. P. 310-
320 may not be used to attack credibility, citing Commonwealth v. ](.rall, 434 A.2d 99 (Pa.
Super. 1981)). Finally, the Defendant could not articulate the amount or type of income
generated by the illegal gambling machines to substantiate the relevance. Rather, the
Commonwealth confirmed that the illegal gambling machines were removed in 2012, prior to the
24
Defendant's theft schemes. As such, this Court found admission of Lorraine's ARD record
irrelevant, lacking in probative value, and any reference would only cause juror confusion. This
Court properly precluded the Defendant from admitting irrelevant and inadmissible evidence.
V. THIS COURT PROPERLY ALLO\VED THE TESTil\10NY OF LORRAINE
GOODFIELD REGARDING DIANA GOODFIELD AS AN EXCEPTION TO
THE HEARSAY RULE
Issue nine contends that the trial Court erred as a matter of law or otherwise abused its
discretion in permitting hearsay statements of Diana Goodfield through the testimony of Lorraine
Goodfield, thereby depriving the Defendant of confrontation and a fair trial. The admissibility of
evidence is within the discretion of the trial court and will on] y be reversed upon showing a clear
abuse of discretion. Commonwealth v, Drumheller, 808 A.2d 893, 904 (Pa. 2002), cert.
denied, 539 U.S. 919, 123$.Ct. 2284, 156 L.Ed.2d 137 (2003) (quoting Commonwealth v.
Stallworth, 781 A.2d 110, 117 (2001)); Commonwealth v.Tyson, 119 A.3d 353, 357, appeal
denied, 128 A.3d 220 (Pa. Super. 2015). An abuse of discretion is more than an error in
judgment; it is a misapplication of the law or a showing that the exercise ofjudgment was
"manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the
evidence ofrecord." Tyson, 119 A.3d at 357 quoting Commonwe.alth
. .
v. Harris, 884 A.2d 920,
924 (Pa. Super. 2005), appeal denied, 928 A.2d 1289 (Pa. 2007).
"Relevance" is the threshold requirement for the admissibility of evidence.
Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). The Pennsylvania Rules of Evidence
provide the frameworkregarding admissible evidence. Evidence is relevant if: (a) it has any
tendency to make a fact mote or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action. Pa. R. E. 401. AB the Pennsylvania Supreme
Court explained: «Evidence is relevant if it logically tends to establish a material fact in the case,
25
tends to make a fact at issue more or less probable or supports a reasonable inference or
presumptionregarding a material fact." Drumheller, supra at 904.
Moreover, all relevant evidence is admissible, except as otherwise provided by law.
Evidence that is not relevant is not admissible. Pa. R. E. 402. Notwithstanding, hearsay evidence
is generally inadmissible. See Pa. R. E. 801 and 802. However, the Pennsylvania Rules of
Evidence provide certain exceptions to hearsay evidence. See Pa. R. E. 803. One exception is an
excited utterance, Id. An excited utterance is "a statement relating to a startling event or
condition, made while the declarant was under the stress of excitement that it caused." See Pa. R.
E. 803(2). An exited utterance need not describe or explain the event, but only relate to it and it
need not be contemporaneous to the event See Pa. R. E. 803(2), comment. The timing of the
statement is crucial and must show that: "the nervous excitement continues to dominate while the
reflective processes remain in abeyance." Id. quoting Commonwealth v. Gore, 396 A.2d 1302,
1305 (Pa. Super. 1978). The determination ofan excited utterance is fact specific and determined
on a case-by-case basis. Commonwealth v. Wholaver, 989 A.2d 883 (Pa. 2010). Factors trial
courts should consider are whether the statement was a narrative; the time elapsed between the
occurrence and the utterance; and whether the declarant had the opportunity to or did speak to
others. Commonwealth v. Carmody, 799 A.2d 143, 14 7 (Pa. Super. 2002) citing
Commonwealth v. Sanford, 580 A.2d 784, 788 (1990), appeal denied, 588 A.2d 508 (Pa.
1991).
The Defendant objected during Lorraine's testimony when she explained that she
"followed the money" with her daughter Diana. N.T. Trial, November- 1,2017, atp. 98-102.
Lorraine explained that Diana completed the Defendant's data entry duties for one shift prior to
the Defendant entering her own data. Id. at 99-100. Lorraine testified as to what Diana told her
26
when she entered the store after Diana compared her own Excel spreadsheet to the Defendant's
Excel spreadsheet. Id. at 100-101. Defense counsel objected to Lorraine's testimony as hearsay.
In response, the Commonwealth argued thatLorraine's testimony should be admitted as an
exception to the hearsay rule, under the excited utterance exception. Id. at 101. This Court
allowed limited testimony regarding Diana's discovery of the Defendant's theft schemes as a
hearsay exception, Lorraine testified that her and Diana investigated potential reasons for the
cash losses and when she entered the store, Diana told her to brace herself since she discovered
that the Defendant had been altering the Excel spreadsheets. Id. at 98-102. Lorraine reacted and
stated: "oh, my God, oh, my God, Shelia was the one." Id. at 102.
Lorraine's testimony related to the excitement and emotional impact of discovering the
Defendant as the culprit and the shock did not wear off as Diana explained the theft schemes.
Therefore, this Court properly allowed Lorraine's limited testimony as to how Diana discovered
the Defendant'stheft schemes as her reaction fell within the exited utterance exception to
hearsay.
Moreover, any error in allowing the testimony is harmless, as Diana also testified and was
available for cross-examination.to reveal any discrepancies or inaccuracies.
VI. TIDS COURT PROPERLY ADIBTTED THE DEFENDANT'S PRIORBAD
ACTS, CRIMJNAL CONVICTIONS, AND CIVIL JUDGlVIENTS
Issues ten and eleven argue that the trial Court erred or abused its discretion in admitting
evidence of the Defendant's prior convictions for theft by deception and bad checks.The
Defendant contends that this evidence was barred by Pa. R. E. 404(a)(l) and 404(b)(l), and was
otherwise inadmissible as it was not relevant, and unfairly prejudiced the Defendant. Similarly,
issues twelve and thirteen argue that the trial Court erred or abused its discretion in admitting
evidence ofcivil claims and judgments againstthe Defendant in violation of Pa. R. E. 404(a)(l)
27
and 404(b)( 1 ), and that the evidence was otherwise inadmissible irrelevant, and unfairly
prejudicial under Pa. R. E. 401 and 403.
Under Pennsylvania law, the admissibility of evidence is within the discretion of the trial
court and will only be reversed upon showing a dear abuse of discretion. Commonwealth v.
Drumheller, 808 A.2d 893, 904 (Pa. 2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156
L.Ed.2d 137 (2003) (quoting Commonwealth v. Stallworth, 781 A.id 110, 117 (Pa. 2001));
Commomvealth v. Tyson, 119 A.3d 353, 357, appeal denied, 128 A.3d 220 (Pa. Super. 2015).
An abuse of discretion is more than .an error in judgment; it is a misapplication of the law or a
showing that the exercise of judgment was "manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of'record," Tyson, 119 A,3d at 357
quoting Commonwealth v. Harris, 884 A.2d 920, 924 (Pa. Super. 2005), appeal denied, 928
A.2d 1289 (Pa. 2007),
'(Relevance" is the threshold requirement for the admissibility of evidence.
Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). The Pennsylvania Rules of Evidence
provide the framework regarding admissible evidence. Pennsylvania Rule of Evidence 401
provides the test for relevant evidence.
Rule 401. Test for Relevant Evidence
Evidence is relevantif
(a) ithas any tendency to make a fact more or less probable than it
would he without the evidence; and
(b) the fact is of consequence in determining the action.
Pa.R.E. 401.
The Pennsylvania Rules of Evidence further state: "[ a[ll relevant evidence is admissible;
except as otherwise provided by law. Evidence that is not relevant is not admissible." Pa. R. E.
402. Pa.R. E. 403 explains limitations for Pa. R. E. 402:
28
The court may exclude relevant evidence if its probative value is
outweighed by a danger of one or more ofthe following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.
Pa.R.E. 403.
Pa. R. E. 404 governs the admissibility of evidence regarding a person's character, other crimes
or bad acts. Pa. R. E.404(b) states:
Rule 404. Character Evidence; Crimes or Other Acts
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person's character or character
trait is not admissible to prove that on a particular occasion the person
acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The
following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant's
pertinent trait, and if the evidence is admitted, the prosecutor
may offer evidence to rebut it;
(b) Crimes, Wrongs or Other Acts.
(]) Prohibited Uses. Evidence of a crime, wrong, or other act is not
admissible to prove a person's character in order to show that on a
particular occasion the person acted inaccordance with the character.
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident. In
a criminal case this evidence is admissible only if the probative value
of the evidence outweighs its potential for unfair prejudice.
(3) Notice in a Crimtnal Case. In a criminal case the prosecutor must
provide reasonable notice in advance of trial, or during trial if the
court excuses pretrial notice on good cause shown, of the general
nature of any such evidence the prosecutor intends to introduce at
trial.
Pa.R.E. 404(b ).
As such, the admissibility of evidence of.a prior crime, wrong, or other bad acts first
depends upon the purpose for which it is being offered. Character or prior bad act evidence is not
admissible for the purpose of demonstrating the defendant's propensity to commit crimes or to
suggest that the defendant acted in conformity therewith. Commomvealth v. Melendez-
29
Rodriguez, 856 A.2d 1278, 1283 (Pa. Super. 2004). However, such evidence can be admitted
"in certain circumstances where it is relevant for some other legitimate purpose and not utilized
solely to blacken the defendant's character." Id. Specifically, other crimes evidence is admissible
if offered for a non-propensity purpose, such as proof of an actor's knowledge, plan, motive,
identity, or absence of mistake or accident. Commonwealth v. Tyson, 119 A.3d 353, 357-60,
appeal denied, 128 A.3d 220 (Pa. 2015) (citing Commonwealth v. Chmiel, 889 A.2d 501(2005). If such evidence is offered for a legitimate purpose, the evidence of prior bad acts is
admissible if the probative value outweighs the risk of unfair prejudice. Id. citihg
Commonwealth v. Hairston, 84 A.3d 657 (2014), cert; denied, -U.S.--, 135 S.Ct. 164,
190 L.Ed.2d 118 (2014).
When determining the probative value versus risk of unfair prejudice, a cautionaryjury
instruction "may ameliorate the prejudicial effect of the proffered evidence .... Jurors are
presumed to follow the trial court's instructions." Id. quoting Hail'ston, supra at 666 (holding
extraneous offense of arson was admissible under Rule 404(b) as res gestae evidence in
prosecution for murder; trial court's instruction on how arson evidence should be considered
minimized likelihood that arson evidence would inflame jury or cause it to convict defendant on
improper basis).
Additionally, under Pennsylvania law, a stipulation is a declaration that the fact agreed
upon is proven. Commomvealth v. Rizzuto, 777 A.2d 1069, 1088 (Pa. 2001). Concessions made
in stipulations are judicial admissions, and accordingly may not later in the proceedings be
contradicted by the parties who make them. Commonwealth v. Rodebaugh, 519 A.2d 555, 561
(Pa. Cmwlth. 1986).
30
In the present case, the Commonwealth filed a motion in limine seeking to introduce the
Defendant's prior bad acts, criminal convictions, collection claims, and insurance claims. The
Commonwealth argued that these convictions and judgments should be permitted to show the
Defendant's motive, opportunity, plan, preparation, intent, knowledge, identity, absence of
mistake or accident.
At trial, the Defendant stipulated to the proposed testimony of Mauri Kelly, the
Lackawanna County Clerk of Judicial Records, who if testifying would corroborate that the
Defendant committed a series of theft-related criminal offenses with restitution owed in the
amount of $57,000.00. N.T. Trial, November 6, 2017 (PM), at p. 29-32. The stipulation
referenced a payment plan in which the Defendant would pay $170.00 dollars per month for
twenty (20) years. Id. at 32. The stipulation also referenced twenty-five (25) Lackawanna County
Civil Judgments in excess of $350,000.00 against the Defendant. Id. at 33-36.
Evidence of the Defendant's prior bad acts was not admitted to show conformity
therewith, rather, to show motive, opportunity; plan, preparation, intent, knowledge, identity,
absence of mistake or accident, The Defendant's history of theft-related offenses demonstrates the
Defendant's knowledge and absence ofa mistake in her commission of the underlying offenses,
Additionally, the Defendant's requirement to pay outstanding restitution and civil judgments
showed motive. Ultimately, the Defendant stipulated to the evidence of her civil judgments and
prior criminal convictions. It is long established under Pennsylvania law that a stipulation is an
agreed upon fact that need not be proven. As such, the Defendant's history was not improperly
admitted as character evidence, but instead was appropriately admitted within the permitted uses ..
Moreover, the Defendant stipulated to the Clerk ofJudicial Record's testimony as to the official
31
court history ofthe Defendant's convictions and judgments, as well as the amounts owed.
Therefore, this evidence was properly admitted.
VIL THIS COURT PROPERLY ALLOWED THE ADMISSION OF THE TILL
REPORTS ANDTHEFTSUMI\1ARY AS EVIDENCE
Issues fourteen and fifteen argue that the trial Court erred or otherwise abused its
discretion in allowing evidence of the till reports and schedules prepared by Diana as lacking
proper authentication and foundation. The admissibility of evidence is within the discretion of the
trial court and will only be reversed upon showing a clear abuse of discretion. Commonwealth
v. Drmrtheller, 808 A.2d 893, 904 (Pa. 2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156
L.Ed.2d 137 (Pa. 2003) (quoting Commonwealth v. Stallworth, 781 A.2d 110, 117 (Pa.
2001)); Commonwealth v. Tyson, 119 A.3d 353, 357, appeal denied. 128 A,3d 220 (Pa.
Super. 2015). An abuse of discretion.is more than an error in judgment; it is a misapplication of
the law or a showing that the exercise of judgment was "manifestly unreasonable, or the result of
bias, prejudice, ill-will or partiality, as shown by the evidence of record." Tyson, 119 A.3d at 357
quoting Commonwealth v. Harris, 884 A.2d 920, 924 (Pa. Super. 2005), appeal. denied, 928
A.2d 1289 (Pa. 2007).
"Relevance" is the threshold requirement for the admissibility of evidence.
Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). The Pennsylvania Rules of Evidence
provide the framework regarding the types of admissible evidence. Evidence is relevant if: (a) it
has any tendency to make a fact more or less probable than it would he without the evidence; and
(b) the factis of consequence in determining the action. Pa. R. E. 401.
Evidence is authenticated or identified if the proponent produces evidence sufficient to
support a finding that the item is what the proponent claims it to be. Pa. R. E. 901(a).
32
Authentication of evidence is generally a low burden of proof. Commonwealth v. Murray, l 74
A.3d 1147 (Pa.Super, 2017).
All relevant evidence is admissible, except as otherwise provided by law, while
evidence that is not relevant is not admissible. Pa. R. E. 402. Hearsay evidence is generally
inadmissible, yet the Pennsylvania Rules of Evidence allow evidence of a regularly conducted
business activity as an exception to the hearsay rule, Sec Pa. R. E. 803.
Pa. R. E. 803(6) states:
(6) Records of a Regularly Conducted Activity. A record (which
includes a memorandum, report, or data compilation in any form) of
an act, event or condition if:
(A) the record was made at or near the time by--cr from
information transmitted by-ssomeone with.knowledge;
(B) the record was keptin the course of a regularly conducted
activity of a "business", which term includes business,
institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or {12) or with a statute
permitting certification; and
(E}the opponent does not show that the source of information
or other circumstances indicate a lack of trustworthiness.
Pa. R. E. 803(6).
Further, under the Uniform Business Records as Evidence Act,
A record of an act, condition or event shall, insofar as relevant, be
competent evidence if the custodian or other qualified witness testifies to
its identity and the mode of its preparation, and if it was made in the
regular course of business at or near the time of the act, condition or event,
mid if, in the opinion of the tribunal, the sources of information, method
and time of preparation were such as to justify its admission.
42 Pa. C.S.A. § 6108.
Finally,
33
The admissibility of evidence is a matter for the discretion ofthe trial court and a
ruling thereon will bereversed on appeal only upon a showing that the trial court
committed an abuse of discretion, An abuse of discretion may not be found merely
because an appellate court might have reached a different conclusion, but requires
a result ofmanifestunreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearlyerroneous,
C(rn1monwealth v. Haas, No. 1858 MDA 2015, 2017 WL 376012, at *7 (Pa. Super. Ct.
Jan. 26, 2017) citin.g Commonwealth v. Poplawski, 130 A.3d 697, 716 {Pa. 2015)
(citations and quotation marks omitted).
Here, the till reports and Excel spreadsheets prepared by Diana are relevant and
admissible. The Commonwealth presented evidenced that the till reports or register tapes were an
independent source utilized to verify the actual cash sales. N.T. November 2, 2017, atp. 57.
Diana testified that she compared the actual cash sales generated on the till reports to those cash
sale entries in the Defendant's Excel spreadsheets. Diana explained that a till report corresponded
with each shift. Id. at 69. She verified the actual cash sales independently by taking the cash
number from the till report and comparing it to the cash plus the owes, less the safe drops, on the
Excel spreadsheet. Id. at p. 74-75. She discussed the manner in which she utilized the till reports
to prepare her own Excel spreadsheets, and illustrated the discrepancies in the Defendant's Excel
spreadsheets. The till reports were authenticated by Diana as the business manager, and Diana
also authenticated the theft analysis as its author. Moreover; the tills and Excel spreadsheets were
records kept-in Cousin's Convenient Marts regularly conducted business activities, generated on
the respective dates. In particular, the theft analysis derived from the till reports and Excel
spreadsheets compiled by Diana. Therefore, the documents were properly admitted by this Court.
This Court discerns no abuse of discretion.
VIII. THIS COURT PROPERLYADMITTED THE AUTHENTICATED BANK
DOCUMENTS
34
JS
Specifically, evidence.is authenticated or identified if the proponent produces evidence
sufficient to support a finding that the item is what the proponent claims itto be. Pa. R. E.
901(a); Commonwealth v. Rabelow,No. 2985EDA 2014, 2016WL 963812, at *12 (Pa.
Super. Ct. Mar, 14, 2016) (Agent testimony as to how records were obtained was sufficient
authentication). Authentication of evidence is generally a low burden of proof. Commonwealth
v. Murray, 174 A.3d 1147 (Pa. Super. 2017).
On November 1, 2017, the Defendant filed a Motion to Quash a subpoena thatthe
Commonwealth had obtained to retrieve the bank records of the Defendant's fiance, Thomas
Aragon I a/k/a "T .C." The Commonwealth admitted that the bank documents arrived on
November l, 201 7. Immediately; the Commonwealth produced copies of the bank documents for
the Defendant. Id. at 3, 176. The Commonwealth intended the bankdocuments to demonstrate
where the stolen cash was deposited as well as the Defendant's control, use, disbursement of the
stolen cash she siphoned through her boyfriend's account and back into her personal account. Id.
at3-4, 6. This Court granted the Defendant three (3) days to review and prepare anymotions in
limiue seeking to limit use of the bank documents: Id. at 176-176. Accordingly, the Defendant
orally objected to the admission ofthe bank documents due to the lateness, size, and
authentication. N.T. Trial, November 6, 2017 (AM), at P: 7. This Court held that the
Commonwealth could introduce the bank documents since cross-examination would provide the
Defendant an opportunity to question their authenticity as well as demonstrate other sources of
the Defendant's income. Id. at 7-8.
During trial, the Commonwealth introduced the bank documents through Detective Bauer,
who explained that she utilized the bank documents to explore other sources of the Defendant's
income. Id. at 22-23. Detective Bauer testified that a review of the Defendant and her
36
boyfriend's banking transactions revealed the Defendant's method of concealing the stolen cash.
Id. at 26. Detective Bauer testified that the Defendant opened a Wells Fargo checking account
and deposited a settlement check in the amount of $36;73022. Detective Bauer noted that this
transaction was verified by the bank. Id. at 24-25; Detective Bauer further explained that with
this settlement check the Defendant deposited $30,000.00 into her own Wells Fargo savings
account, and the remaining $6, 73 0.22 into her Wells Fargo checking account. Id. at 25-26. On
another occasion, Detective Bauer stated that the Defendant withdrew $25,000.00 in cash from
her savings account and her boyfriend opened a Wells Fargo checking account depositing cash in
the same dollar amount of $25,000.00. Id. at27-29.
Detective Bauer testified at length about the Defendant's Wells Fargo checking account.
Id. at 30. She stated that she prepared a summary of the Defendant's Wells Fargo checking and
savings accounts beginning on April 16, 2013, when the Defendant initiated her theft schemes.
Id. at 31.:32, Detective Bauer summarized the Defendant's cash deposits, and testified that in
2013, the Defendant deposited $16,52LOO in cash into her Wells Fargo checking account. In
2014, the Defendant deposited $56,237.21 in cash, and in 2015, the Defendant deposited
$113,805.00 in cash. Over a two and half year period, the Defendant's cash deposits totaled
$186,563.21. Id. at33-34. The total cash deposits during theDefendant's entire theft period
amounted to $263,669.98. Id. at 35. Detective Bauer testified that in the year ofthe Defendant's
arrest, the Defendant's cash deposits into her Wells Fargo account totaled $6,524.00. She noted
that the Defendant's Wells Fargo account was later closed due to insufficient funds. Id. at 35�37.
Detective Bauer also prepared a summary of transactions which showed the Defendant siphoned
cash outthroughpersonal checks, cash withdrawals> or debit transactions. Id. at36-37. For
example, Detective Bauer testified that in 2013, the Defendant issued personal checks totaling
37
amount of $9,698.64, in 2014, $21,950.20, and in 2015, $84,427.76. The total amount of
personal checks issued by the Defendant during her theft schemes totaled $116,076.60. Id.
Detective Bauer testifiedthat during the Defendant's theft schemes, the Defendant's withdrawals
in 2013 totaled $17,290.79, and in 2014 $27)66.80. Id. at 55.
Therefore, the bank documents are relevant and admissible to show the Defendant's
control over the stolen cash through depositing and spending cash for beyond her available
income. The bank documents were also relevant to contradict the Defendant's theory that her
boyfriend contributed to the substantial amounts of cash flowing into her Wells Fargo account In
fact, the Defendant utilized "T.C. 's" salary contribution when cross-examining Detective Bauer,
N.T. Trial, November 6, 2017 (PM) at p. 19-10.
Finally, Detective Bauer referenced the bank's authentication of the account records
throughout.her testimony. Detective Bauer testified that she obtained the account records from
the bank via court order and acknowledged that the account records were what the bank purported
them to be. See Pa. R. K 901(a); Commonwealth v. Rabelow, supra. In response, the
Defendant questioned Detective Bauer on her lack of specific knowledge as to exactly how the
cash was spent. N.T. Trial, November 6, 2017 (PM) at p. 19-10. As such, the bank documents
were properly admitted.
IX. THIS COURTPROPERL Y ADMITTED DETECTIVE BAUER'S
TESTIMONY ABOUT DATE DISCREPANCIES AND LIMITED CROSS-
EXAIVIINATION TO THE CONTROLLING DOCUMENT
Issue eighteen argues that the trial Court erred or otherwise abused its discretion in
admitting hearsay testimony regarding the conclusions of the Commonwealth' s accountant
referenced by Detective Bauer.
38
Hearsay evidence is generally inadmissible, unless it falls within an exception delineated
by the Pennsylvania Rules of Evidence, the Pennsylvania Supreme Court, or by statute. Pa. R. E.
802. Statements offered to prove awitness's course of conduct, rather than the truth of the
statement do not constitute hearsay. See Commonwealth v • .Johnson, 42 A.3d 1017, 1035 (Pa.
2012) (Sergeant's testimony that a detective believed that a boot was used in an assault to explain
why Sergeant collected boot was not hearsay); Commonwealth v. Rega, 933 A.2d 997, 1017
(Pa. 2007) (citing Commonwealth v. Sneed, 526 A.2d 749, 754 (Pa. 1987)) (certain out-of-
court statements offered to explain a course of police conduct are admissible).
In the present case, Detective Bauer described her training and experience .in investigating
theft and embezzlement cases. N.T. Trial, November 6, 2017 (AM), at p. 9. She discussed the
investigative techniques required to uncover a substantial.and intricate theft. Id. at 9-11. Here,
Detective Bauer testified that the Defendant altered the Excel spreadsheets by inflating the
credit/debit card sales, lowering the actual cash sales, and pocketing the cash. She recognized this
method as a common theft scheme. Id. Specifically, Detective Bauer testified that the
Commonwealth uncovered minor corrections to numbers and dates and she reflected those
corrections in her final theft analysis. Id. at 19. The Defendant objected to the reference about the
accountant's corrections as hearsay. Id. at19-20. Detective Bauer explained she made the
accountant's corrections in her theft analysis in support of her investigation. Id. at20.
Therefore, this Court determined that Detective Bauer's testimonyregarding the
discrepancies uncovered by the accountant is non-hearsay as Detective Bauer only explained her
course of conduct in modifying the Affidavit of Probable Cause. Detective Bauer's testimony
was both relevant and admissible under Pa. R. E. 40 I and 402. As such, the testimony was
properly admitted by this Court and no abuse of discretion, occurred.
39
X. THIS COURT PROPERLY LIMJTED CROSS-EXAMINATION OF
DETECTIVE BAUER TO THE CONTROLLING DOCUMENT
Issue nineteen argues that the trial Court erred or abused its discretion when it precluded
the Defendant from offering proof of an alibi defense through the cross-examination of Detective
Bauer about the amended Affidavit of Probable Cause. Under Pa. R. Crim. P. 567, a defendant
who intends to offer an alibi defense at trial shall filed a notice specifying the intent to offer an
alibi defense and list the times and places the defendant is alleging to have been, as well as
witnesses the defendant intends to call in support of the defense, along with their contact
information. Pa. R. Crim. P. 567. If the Commonwealth providesthe defendant notice ofa
change in dates at issue, the defendant's notice of alibi becomes "irrelevant" and the defendant
has a duty to provide new notice for the new date. Commonwealth v. Zimmerman, 571 A.2cl
1062 (Pa. Super. 1990), appeal denied 600 A.2d 953, 529 Pa. 633, certiorari denied, 112 S.Ct.
1498, 503 U.S. 945, 117 L.Ed.2d 638.
Additionally, a claim challenging a court's limit of cross-examination is subject to the
following standard:
[W]e note that in cross-examining a witness, an attorney is entitled to question the
witness about subjects raised during direct examination as well as any facts
tending to refute inferences arising from matters raised during direct testimony ...
Similarly, an attorney may discredit a witness by cross-examining the witness
about omissions or acts that are inconsistent with his testimony ... However, the
scope and-limits of cross-examination is [sic] vested in the trial court's discretion
and that discretion will not be reversed unless the trial court has clearly abused its
discretion or made an error of law.
Commonwealth v. Begley, 780 A.2d 605, 627 (Pa. 2001) (internal citations omitted);
Commonwealth v. Kimbrough, 872 A,2d 1244, 1261-62 (Pa. Super. 2005).
On October 5, 2017, the Defendant provided alibi dates in her Answer to the
Commonwealth's Motion for Reciprocal Discovery. Subsequently, on October 16, 2017, the
Commonwealth filed an amended Criminal Information specifying the total amount of cash stolen
40
based upon the same factual allegations. On October 20, 2017, the Defendant filed a Motion to
Dismiss the Commonwealth's amended Criminal Information, acknowledging that she received a
supplemental narrative containing the corrected amounts and dates of theft alleged as well as
additional discovery. The Defendant did not provide a new notice of alibi for the changed dates.
On cross-examination, the Defendant questioned Detective Bauer regarding her
preparation of the Affidavit of Probable Cause, and dates of theft. N.T. Trial, November 6, 2017
(PM), at P: 14-16. The Commonwealth objected, as the Defendant inaccurately referenced the
original Affidavit of Probable Cause; specifically, the Defendant was questioning Detective
Bauer on a date that the Defendant was not accused of stealing. Id. at 16. This Court sustained
the Commonwealth's objection, as the document the Defendant was referring to was not the
document ultimately admitted into evidence to be used in the prosecution of the case. Id. at 16-
17. The Defendant cross-examined Detective Bauer on when she changed the theft dates. Id. at
17. Detective Bauer explained that the Affidavit ofProbable Cause was not modified, but the
addendum that.became the Master Theft Analysis was modified to reflect the discrepancies found
by the accountant. Id. Defense counsel continued to question on an Amended Affidavit of
Probable Cause, which this Court clarified that it was the addendum, not the Affidavit itself that
was modified. Id. at 17-18.
The Defendant's alibi dates became irrelevant when the Defendant received the -
supplemental narrative and the amended Criminal Information, See Commonwealth v.
Zimmerman, supra. The Defendant did notprovide new alibi dates', as to the amended Criminal
Information, As a result, this Court properlylimited the scope of Detective Bauer's cross-
examination as to the theft dates that were no longer accurate or applicable.
41
XI. THE SENTENCE IMPOSED WAS WITHIN THE .STATUTORY MAXIMUM
AND OTHERWISE APPROPRIATE UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE.
Issues twenty and twenty-one question the propriety ofthis Court's sentence as manifestly
excessive, failure to consider relevant sentencing criteria, consideration of factors already
encompassed by the guidelines, and inadequate reasons for an aggravated sentence. Initially> this
Court notes that no automatic right of appeal exists for a challenge to the discretionary aspects of
sentencing. Rather, this type of appeal is more appropriately considered a petition for allowance
of appeal. Commonwealth v. Rossetti, 863 A.2d 1185, 1193-1194 (Pa. Super. 2004) (citing
Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Supet.2001) (citations ornittedj).
Before. reaching the merits ofa discretionary sentencing issue, a court must
ascertain whether an appellant (i) filed a timely notice of appeal, (ii) properly preserved
the issue to be heard on appeal, {iii} filed a brief free of fatal defects, and (iv) raised a
substantial question that the sentence appealed from is not appropriate under the
Sentencing Code. Commonwealth v. Mastromarino, 2A.3d 581, 588 (Pa. Super.
2010), cert. denied, 609 Pa. 685.
An appellate court evaluates whether a particular issue raises a substantial question
on a case-by-case basis. Commonwealth v. Rossetti, 863 A.2d 1185) 1194 (Pa. Super.
2004). "(The court] will grant an appeal only when the appellant advances a colorable
argument that.the sentencing judge's actions were either: (1) inconsistent with a specific
provision of the Sentencing Code or (2) contrary to the fundamental norms which underlie
the sentencing process." Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super.
1999} (en bane). The Pennsylvania Supreme Court has held that a claim regarding a
sentence being excessive which is within the statutory limits can raise a substantial
42
question, if the appellant "sufficiently articulates the manner in which the sentence
violates either a specific provision of the sentencing scheme set forth in the Sentencing
Code or a particular fundamental norm underlying the sentencing process."
Commonwealth v. Mouzon, 812 A.2d 617, 627-28 (Pa. 2002). However, the
Pennsylvania Superior Court does not accept bald allegations of excessiveness.
Comm:onwMlth v. Reynolds, 835 A.2d 720, 733 (Pa. Super. 2003).
No substantial question exists as to the Defendant> s sentence, since the sentence
imposed was within the statutory limits and the sentences conformed to sentencing norms,
This Court thoroughly reviewed a PSI report, all mitigating and aggravating factors, and
particularly crafted the Defendant's sentence based upon the facts and circumstances
presented at trial and throughout the sentencing phase.
The Defendant challenges the discretionary aspects ofsentencing, however, it is
well-established that the sentencing function is a matter vested within the sound discretion
of the sentencing court and will not be disturbed on appeal absent a manifest abuse of
discretion. See Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). i'[A]n abuse of
discretion is more than a mete error of judgment. ... [A] sentencing court will not have
abused its discretion unless the record discloses that the judgment exercised was
manifestlyunreasonable, or the result of partiality, prejudice, bias or ill-will." Id.(quotations omitted). "An abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack 'of support so as to
be clearly erroneous." Id., quoting Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046
43
(2003). Therationale offered by the Pennsylvania Supreme Court for this deferential
standard is as follows:
Simply stated, the sentencing court sentences flesh-and-blood defendants
and the nuances of sentencing decisions are difficult to gauge from the cold
transcript used upon appellate review. Moreover, the sentencing court enjoys
an institutional advantage to appellate review, bringing to its decisions an
expertise, experience, and judgment that should not be lightly dis turbed.
Even with the advent of the sentencing guidelines, the power of sentencing
is a function to be performed by the sentencing court. Thus, rather than cabin
the exerciseof a sentencing court's discretion, the guidelines merely inform
the sentencing decision.
Walls, 926 A.2d at 961-62 (citations omitted).
A sentence of confinement must be "consistent with the protection of the public,
the gravity·ofthe offense as it related to the impact on the life of the victims and op. the
community, and the rehabilitative needs of the defendant." 42 Pa. C.S.A § 972l(b). A
sentencing court may determine a defendant's potential for rehabilitation by considering
demeanor, apparent remorse, manifestation of social conscience, and cooperation with law
enforcement agents. Commonwealth v. Begley, 780 A,2d 605, 644 (Pa. 2001);
. Commonwealth v. Constantine, 478 A.2d 39 (Pa. Super, 1984)i Commonwealth v.
Gallagher,. 442 A.2d 820 {Pa. Super. 1982). Moreover, facts regarding
. the nature and
circumstances ofthe offense that are not necessarily elements of the convicted offense, are
proper factors to consider in deciding to sentence in the mitigated range or the aggravated
range. Commonwealth v. Chilquist, 548 A.2d 272 (Pa. Super. 1988). See also,
Commonwealth v. Darden, 531 A.2d 1144, 1149 (Pa. Super. 1987) Additionally, trial
courts are permitted to use prior conviction history and other facts already included in the
guidelines, if they supplement other extraneous sentencing information. Commonwealth
v. Simpson, 829 A.2d 334, 339 (Pa. Super. 2003). Furthermore, the decision to impose a
44
•• ,,fi ····--- ---·-·--·-·---·-,·----------------------.---�-..-------··---·-,,,, ••
concurrentor consecutive sentence rests within the discretion of the sentencing court.
Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008) (citing
Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super. 2005)). See also,
Commonwealth v. Hoag, 665 A.2d 1212 {Pa. Super. 1995)(stating an appellant is not
entitled to a "volume discount" for their crimes by having all sentences nm concurrently).
Additionally, if a pre-sentence investigative report (hereinafter "PSI") exists,
appellate courts presume that the sentencing court "was aware of relevant information
concerning the defendant's character and weighed those considerations along with
mitigating statutory factors. A P�I constitutes the record and speaks for itself."
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.1988). The Devers courtfurther
articulated that "it would be foolish, indeed, to take the position that if a court is in
possession of the facts, it will fail to apply them to the case at hand." Id. See
Commonwealth v. Boyer, 856 A.2d 149 (Pa. Super .. 2004); Commonwealth v. Burns,
765 A.2d 1144 (Pa. Super. 2000).
Accordingly, this Court had the benefit of a PSI, which provided specific facts about the
Defendant's character and lengthy theft-related history, including her Prior Record Score of 4, as
well as the fact that the Defendant committed the instant theft offenses while on supervision. This
Court presided over the Defendant's four-day jury trial, and observed the Defendant's demeanor
as we11 as listened to her testimony and considered the Commonwealth's evidence. This Court
also reflected on the victims and the significant financial impactthe Defendant's actions caused
in their personal.lives and their business. N.T. Sentencing, January 30, 2018, at p. 5-16. The
Defendant addressed this Court and echoed her previous sentiments premising future growth.
However, this Court noted that the Defendant's. past words ofremorse rang hollow given her
45
pattern of thefts and current criminal behavior. Id. at 18-19. Therefore, this Court found no
mitigating factors present. Rather, this Court foundthe following aggravating factors including
the well-planned, long-term, systematic theft from the Goodfield family and Cousin's Convenient
Marts. .Id, at 19. This Court noted that the planning, intent, substantial amount of theft, and length
of time as well as frequency of the theft occurrences justified an aggravated range sentence. ld.
Under these circumstances and the applicability of the Sentencing Guidelines, this Court
sentenced the Defendant as follows:
16 CR 464, CT I: thirty-six (36) -- seventy-two (72) months, with three (3) years
probation
16 CR 464, CT3: seventeen (17) - thirty-six (36) months, with two (2) years
probation
This Court also imposed sentence for the Defendant's probation violations, revoking and
re-sentencing as follows:
01 CR 70, CT 3: six (6) "twelve (12) months, with three (3J years probation
01 CR 17 50, CT 2: six (6) - twelve (12) months, with three (3) years probation
01 CR 1751, CT2: six (6)-twelye (12)111onths, with three (3) years probation
03 CR 1094, CT l: six (6) - twelve (12) months, with three (3) years probation
All of the Defendant's sentences were ordered consecutively, and aggregated to seventy-
seven (77) to one hundred and fifty-six (156) months ofincarceration followed by seventeen (17)
years of probation, supervised by the Pennsylvania Board of Probation and Parole.
The sentence was appropriate under the facts and circumstances of this case and in light of
the guidelines. This Courtconsidered the punitive, deterrent, and rehabilitative purposes of
sentencing, as well as the impact of the crimes on the victims, their families, and upon the
community. The sentence imposed was within the statutory maximum. Moreover, this Court had
the benefit of a PSlreport, and weighed the information accordingly.
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Therefore, based upon the foregoing reasons, the sentence imposed by this Court
was neither excessive nor harsh, and no abuse of discretion occurred. Moreover, the
record supports and justifies the sentence imposed,
CONCLUSION
Accordingly, the testimony and evidence at trial was sufficient to sustain the jury's
verdict. A review of the record indicates that evidentiary rulings made by the trial Court were
lawful and appropriate, Finally, thesentence imposed was within.the statutory maximum citing
aggravated factors that supported this Court's rationale for state incarceration. Therefore, the
Defendant's conviction should be upheld and this Court's Judgment of Sentence should be
affirmed,
BY THE COURT:
'P.J.
�
CC: Notice of the entry of the foregoing Memorandum has been provided to each party pursuant to Pennsylvania
Rule of Criminal Procedure 114 by mailing time-stamped copies to the following individuals;
Lackawanna County District Attorney's Office
Robert M. Buttner, Esq.
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